STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA MORMAN, d/b/a PATTI ) CAKE NURSERY, )

)

Petitioner, )

)

vs. ) Case No. 97-3032

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Fort Myers, Florida, on December 15, 1997, and by videoconference on February 16 and 17, 1998. In the portions of the hearing conducted by videoconference, the administrative law judge participated from Tallahassee, and the parties, witnesses, attorneys, and court reporter participated from Fort Myers.

APPEARANCES

For Petitioner: Bruce A. Tischler

Greene & Tischler, P.A.

10175 Six Mile Cypress Parkway Suite 4

Fort Myers, Florida 33912

For Respondent: Eugenie G. Rehak

District Legal Counsel Department of Children

and Family Services Post Office Box 60085

Fort Myers, Florida 33906

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to the renewal of her license as the operator of a child care facility.

PRELIMINARY STATEMENT

By letter dated June 5, 1997, Respondent denied Petitioner's application to operate a child care facility because of her failure to maintain the minimum child care standards. The letter states that Respondent failed to meet nine standards: direct supervision, staff-to-child ratio, timely screening of personnel, recordkeeping, staff training, safe indoor equipment, safe outdoor area, staff training in first aid and CPR, and tuberculosis test results for staff.

The letter states that Petitioner had imposed fines against Respondent three times in 1993, once on 1995, once in 1996, and three times in 1997 and had issued her 22 warning letters.

Petitioner timely demanded a formal hearing.

At the hearing, Petitioner called six witnesses and offered into evidence four exhibits. Respondent called 21 witnesses and offered into evidence 182 exhibits. All exhibits were admitted except Respondent Exhibits 47 and 287, which were proffered.

The administrative law judge attached conditions to the admission of a number of Respondent's exhibits. As to Respondent Exhibit 78(a), the administrative law judge

admitted only the lower third of the page. As to Respondent Exhibits 179, 189, 209, 275, and 285, the administrative law judge admitted them for notice, but not as proof of the substantive violations asserted in these documents. As to Respondent Exhibit 291, which is a Partial Final Order and Remand Order in an earlier case between the same parties, the administrative law judge admitted only the part of Respondent's order that was final and excluded from evidence the part of the order that was a remand because this part of the order is on appeal following an order declining remand from the administrative law judge.

The parties did not order a transcript.

FINDINGS OF FACT

1. Petitioner was licensed to operate a child care facility continuously from December 31, 1985, through June 30, 1997. Several licenses issued by Respondent to Petitioner were provisional due to Respondent's concerns about Petitioner's compliance with various statutes and rules governing child care facilities. (References to Respondent include the predecessor agency to the Department of Children and Family Services.)

2. On June 5, 1997, Respondent notified Petitioner that it would not renew her child care facility license when it expired on June 30, 1997. Presumably because Petitioner timely requested a hearing, Respondent allowed her to continue

   to operate her facility past June 30. However, on July 3, 1997, Respondent issued an order of emergency suspension pending review of the decision not to renew. Petitioner has not since operated her child care facility.

3. The two major issues in this case involve Petitioner's repeated failures to employ sufficient staff to satisfy the staff-to-child ratios and repeated failures to ensure that staff directly supervise all children. Although these standards are related in purpose, the staffing-ratio standard requires that a certain number of staffpersons be responsible for a maximum number of children, with a lower ratio for younger children, and the direct-supervision standard requires in most instances that a staffperson be in the same room as the children.

4. As a result of 31 facility inspections, Respondent identified 40 violations of these two standards. Five of these inspections resulted in Respondent filing administrative complaints, in response to which Petitioner eventually paid relatively small fines. The remaining 26 inspections resulted in nothing more serious than Respondent issuing warning letters.

5. The first Administrative Complaint, which is dated February 8, 1993, alleges that Respondent conducted inspections on August 9 and September 22, 1992, and found each time insufficient staff to satisfy the required ratio of staff

   to children. The Administrative Complaint alleges that Respondent sent Petitioner a letter on October 2, 1992, warning that further infractions of the staffing ratio could result in a fine, but Respondent's inspectors found on December 16, 1992, another staffing-ratio violation, as well as a direct-supervision violation. The Administrative Complaint seeks a fine of $30.

6. Petitioner did not contest the allegations of the February 8 Administrative Complaint. Instead, she paid the

   $30 fine on April 19, 1993.

   
   

7. Respondent filed another Administrative Complaint dated June 9, 1993. The Administrative Complaint alleges that a 15-year-old staffperson had not undergone the necessary screening. Three months later, Respondent converted the Administrative Complaint to a warning due to Petitioner's confusion concerning the screening requirements applicable to such a young staffperson.

8. Respondent filed a third Administrative Complaint on December 9, 1993. The Administrative Complaint alleges that, on November 17, 1993, three staffpersons were supervising 37 children, in violation of the staffing ratios and Petitioner's licensed capacity. Issuing a warning as to the capacity violation, Respondent sought a $75 fine for the staffing-ratio violation.

9. Petitioner did not contest the December 9 Administrative Complaint. Instead, she paid the $75 fine on February 17, 1994.

10. Respondent filed a fourth Administrative Complaint on February 17, 1995. The Administrative Complaint alleges, among other things, that Petitioner did not have a sink with the required number of compartments to allow the kind of food preparation that she was undertaking at the facility. The parties settled this allegation without the imposition of a fine or other discipline.

11. Respondent filed a fifth Administrative Complaint on May 23, 1996. The Administrative Complaint alleges that Petitioner's employees propped up three feeding bottles for infants. The Administrative Complaint seeks a $50 fine.

12. Petitioner paid the $50 fine on June 27, 1996.

    
    

13. Respondent filed the sixth and seventh Administrative Complaints on February 11 and 26, 1997. Petitioner contested these allegations, as well as the allegations contained in an eighth Administrative Complaint dated March 18, 1997. All three complaints were consolidated for a single hearing.

14. The partial final order resulting from the hearing on the three complaints imposed $400 in fines against Petitioner for two violations of the staffing ratios (alleged in the February 11 Administrative Complaint), one violation of

    the staffing ratios (alleged in the February 26 Administrative Complaint), and one violation of the direct-supervision requirement (alleged in the February 26 Administrative Complaint). The partial final order dismissed the March 18 Administrative Complaint and remanded allegations of inadequate training of staff. (The administrative law judge declined the remand, and the Respondent has appealed the order declining remand.)

15. In addition to the above instances of violations of staffing ratios or direct supervision, Respondent also proved numerous other instances of violations of these two minimum- care standards.

16. Respondent proved that Petitioner violated the following minimum-care standards: May 7, 1986 (staffing ratio); May 13, 1987 (staffing ratio and capacity limit); June 20, 1987 (staffing ratio); November 18, 1987 (staffing ratio); April 14, 1988 (staffing ratio); May 6, 1988 (staffing ratio); June 7, 1988 (staffing ratio); August 16, 1988 (staffing ratio); May 16, 1989 (staffing ratio and direct supervision); March 2, 1990 (staffing ratio); June 22, 1990 (direct supervision); October 2, 1990 (staffing ratio); October 5, 1990 (staffing ratio and direct supervision); November 5, 1990 (staffing ratio and direct supervision); November 8, 1990 (staffing ratio); November 15, 1990 (staffing ratio); May 14, 1991 (direct supervision); December 16, 1992 (staffing ratio

    and direct supervision); March 26, 1993 (staffing ratio); April 7, 1994 (staffing ratio and direct supervision); June 29, 1994 (direct supervision); July 28, 1995 (staffing ratio and direct supervision); December 6, 1995 (staffing ratio); January 28, 1997 (staffing ratio and direct supervision); February 17, 1997 (staffing ratio and direct supervision); June 25, 1997 (staffing ratio); and June 30, 1997 (staffing ratio).

17. Respondent issued inspection reports for all of the violations listed in the preceding paragraph and provided Petitioner with copies of this documentation. Respondent periodically wrote letters to Petitioner advising her of the legal requirements as to staff ratios and direct supervision. Respondent repeatedly offered Petitioner technical advice regarding these crucial minimum standards for the provision of child care.

18. There is no possibility that Petitioner did not understand the staffing-ratio and direct-supervision requirements. Petitioner's noncompliance constituted nothing less than defiance of these two minimum-care requirements over a period of 11 years.

19. From 1986 through 1990, Petitioner violated these two standards 16 times. In 1991, she violated them only once. However, she violated them three times in 1992--resulting in the first administrative fine for the violation of these

    standards. Petitioner violated these standards twice in 1993--the second violation resulting in the second administrative fine for the violation of these standards.

20. Petitioner violated the staffing-ratio and direct- supervision standards twice in 1994 and twice in 1995, but not at all in 1996. However, she violated these standards six times in 1997, including twice after the issuance of a third administrative complaint concerning the violation of these standards. These last two, particularly ill-timed violations, led directly to the decision not to renew her license and the later decision not to allow her to operate pending review of the nonrenewal decision.

21. Although Petitioner has greatly reduced the number of her violations of the staffing-ratio and direct-supervision standards, she has nonetheless refused to comply with these important requirements designed to ensure the safety of the children for whom she is caring. Her violation of these standards while cases were still pending over earlier violations betrays a hardened resolve not to comply with these two standards.

22. Respondent also proved that Petitioner repeatedly violated other requirements, such as for timely screening of employees and recordkeeping. However, Petitioner's repeated failures to comply with the staffing-ratio and direct- supervision requirements are sufficient to warrant the denial

    of her application for renewal of her license or, in the alternative, the revocation of her license.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

24. Section 402.310(1)(a) authorizes Respondent to deny, suspend, or revoke a license, or impose an administrative fine, for the violation of any provision of Sections 402.301-

    402.319. In determining the appropriate discipline, Section 402.310(1)(b) directs Respondent to consider the severity of the violation, corrective actions, and previous violations.

25. Section 402.305(4) sets forth staffing ratios, which have been in effect since 1991. Previously, Rule 10M- 12.002(5)(a)1-3 stated the staffing-ratio requirement.

26. Rule 65C-22.001(5)(a) and (b) sets forth the direct- supervision requirement, which has been in effect since June 1, 1997. Previously, Rule 10M-12.002(5)(a)2 stated the direct-supervision requirement.

27. Florida law provides that the agency has the burden of proof when it declines to renew a license, if the renewal of the license is a ministerial act. For instance, in Vocelle v. Riddell, 119 So. 2d 809 (Fla. 2d DCA 1960), the court

    construed a statute that provided for renewal of a license on the presentation of a written request and payment of the required fee. Holding that the reissuance of a license under this statutory scheme amounted to no more than a ministerial act, the court refused to allow the agency to withhold the license unless the agency proved that the license should be revoked. If the renewal of the license is ministerial, rather than discretionary, the burden of proof is not on the licensee, but is on the agency, which may not escape the burdens imposed upon it in revoking a license by attempting merely not to renew a license.

28. The licensing scheme in this case imposes upon Respondent considerable responsibilities beyond merely collecting a renewal fee and ensuring that the renewal application is filled in properly. Section 402.308(3)(b) provides that:

    [p]rior to the renewal of a [child care facility] license, the department shall reexamine the child care facility, including in that process the examination of the premises and those records of the facility as required under s. 402.305, to determine that minimum standards for licensing continue to be met.

29. Not surprising, given the involvement of children with Petitioner's business, the Legislature has imposed considerable, extra-ministerial duties upon Respondent in connection with the renewal of child care facility licenses. As explained by Section 402.301, the Legislature intends the

    licensing and relicensing provisions of Chapter 402 to protect the health, safety, and well-being of children. Allocating the burden of proof upon Petitioner is thus entirely consistent with the controlling statutory and decisional law.

30. However, in Coke v. Department of Children and Family Services, 704 So. 2d 726 (Fla. 5th DCA 1998), Respondent agreed that it had the burden of proving, by clear and convincing evidence, that a licensee was not entitled to the renewal of her family day care license. Not presented with the issue, the court proceeded to consider the case on the assumption that Respondent has the burden of proving, by clear and convincing evidence, the bases for not renewing a family day care license.

31. In light of the controlling authority and the failure of the Coke decision to resolve this procedural issue, the administrative law judge has allocated the burden of proof to Petitioner. However, the findings as to the existence and effect of the staffing-ratio and direct-supervision violations would be no different if Respondent bore the burden of proving by clear and convincing evidence these two grounds for revoking Petitioner's license.

32. For several years, Petitioner has repeatedly violated the applicable legal requirements governing staffing ratios and direct supervision. These two requirements directly safeguard the children entrusted to Petitioner, and

Petitioner's repeated violation of these requirements directly endangers the safety and welfare of these children.

Regardless of the procedural posture of this case, Respondent justifiably declined to reissue Petitioner's child care facility license or demonstrated by clear and convincing evidence good reasons to revoke this license.

RECOMMENDATION

It is

RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's application for renewal of her child care facility license.

DONE AND ENTERED this 8th day of April, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1998.

COPIES FURNISHED:

Bruce A. Tischler Greene & Tischler, P.A.

10175 Six Mile Cypress Parkway Suite 4

Fort Myers, Florida 33912

Eugenie G. Rehak District Legal Counsel Department of Children

and Family Services Post Office Box 60085

Fort Myers, Florida 33906

Gregory D. Venz, Agency Clerk Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, General Counsel Office of the General Counsel Department of Children and

Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-003032

Orders for Case No: 97-003032